COURT OF APPEALS DECISION DATED AND RELEASED APRIL 16, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2282-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAMIAN DORAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Brown County:
RICHARD G. GREENWOOD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Damian Doran appeals a judgment convicting him of
physical abuse of a child and sentencing him to forty-two months in
prison. The jury acquitted Doran of the
criminal gang penalty enhancer. See
§ 939.625(1), Stats. Doran argues that: (1) the trial court
erred when it failed to rule on his request for trial to the court;
(2) this court should reverse in the interest of justice because the real
controversy was not fully tried; (3) the trial court impermissibly
substituted its opinion for the jury's finding regarding the gang-related
penalty enhancer; and (4) the court erroneously exercised its sentencing
discretion when it sentenced Doran for crimes committed by others. We reject these arguments and affirm the
judgment.
The child abuse charge
arises out of a fist-fight between Doran and a minor. The victim, a member of a rival gang, then attempted retaliation
including firing shots at a car Doran occupied. The State attempted to prove that the fist-fight was a
gang-related activity. The jury found
that Doran committed child abuse, rejecting a self-defense argument, but
acquitted Doran of the criminal gang penalty enhancer.
Doran was not prejudiced
by the trial court's failure to rule on his request for trial to the court
because the court would have been compelled to deny the motion. The record does not show that the State
consented to waiver of its jury trial right.
Section 972.02(1), Stats.,
allows waiver of a jury trial "with the approval of the court and the
consent of the State." The record
does not establish that the State consented to waive its jury trial right.
Doran argues that the
real controversy was not tried because the trial included substantial evidence
regarding gang activity that occurred after the child abuse incident. That evidence was relevant because Doran was
charged with criminal gang activity under § 939.625(1), Stats.
The fact that the jury acquitted Doran of that penalty enhancer did not
render evidence of the subsequent shooting inadmissible. The real controversy, whether Doran was acting
in self-defense, was fully and fairly tried.
We conclude there is no basis for discretionary reversal under
§ 752.35, Stats.
The trial court did not
substitute its conclusion on gang-related activity for the jury's finding. The jury's acquittal on that penalty
enhancer means that it had a reasonable doubt that the child abuse was
committed "for the benefit of, at the direction of or in association with
any criminal gang, with specific intent to promote, further or assist in any
criminal conduct by criminal gang members ...." See § 939.625(1)(a), Stats. The jury's
verdict does not constitute a finding that Doran was not a gang member or did
not engage in gang-related activity. In
fact, Doran admitted being a member of the Gangster Disciples, whose primary
gang activities include "drug dealing, burglaries, auto theft, batteries,
threats, intimidation ...." In
pronouncing sentence, the trial court is permitted to consider a defendant's
undesirable behavior patterns as well as his personality, character and social
traits. See Triplett v.
State, 51 Wis.2d 549, 552, 187 N.W.2d 318, 320 (1971); Waddell v.
State, 24 Wis.2d 364, 368-69, 129 N.W.2d 201, 203 (1964). Doran's gang involvement is a relevant
factor in assessing his character and establishes a need to protect the
community from his criminal activity.
The trial court properly
exercised its sentencing discretion.
The forty-two months sentence is seventy percent of the maximum
term. The court specifically considered
the recommendation in the presentence report, Doran's character and the need to
protect the public. See State
v. Paske, 163 Wis.2d 52, 62, 471 N.W.2d 55, 59 (1991). By considering Doran's gang involvement and
the dangers created by gang activity, the trial court did not impermissibly
punish Doran for crimes committed by others against him. Rather, the court appropriately considered
Doran's lifestyle when assessing his character and the need to protect society.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.